ELR Citation: ELR 20799
No(s). 85-3718 (9th Cir. May 16, 1986)

The court holds that the Corps of Engineers has jurisdiction to require River and Harbor Act (RHA) §10 and Federal Water Pollution Control Act (FWPCA) §404 permits for the construction of a boat-launching facility on private lakefront property flooded by a Corps-built dam and subject to a Corps flowage easement. The court holds that the outer perimeter waters of lake added by construction of a dam in 1950 are navigable waters within the meaning of the RHA and FWPCA and are thus subject to the Corps regulations. The parties have stipulated that the entire lake, including that portion above the old high watermark, is capable of sustaining commercial transportation. The court rejects the landowners' argument that a Declaration of Taking filed by the United States to obtain a flowage easement for flooded lands prohibits the government from asserting its regulatory authority now. Although the Declaration neither memorializes a navigational servitude over the flooded land nor asserts the public's right to navigate the waters, the government's regulatory authority over navigable water remains paramount. How a body of land became a navigable waterbody does not affect the nature of the government's right to regulate activities. The court holds that the government's navigable servitude over the flooded lands is derived from the Commerce Clause, not from the Declaration. Finally, the court holds that the government may acquire a greater interest in the flooded lake perimeter than that which is expressly set forth in the Declaration. Despite alleged representations made in the past by the government, an agency is not bound forever by its prior determinations.

[The district court opinion is published at 15 ELR 20206.]

Counsel for Plaintiffs-Appellants
Steven L. Herndon
P.O. Box 1326, Sandpoint ID 83864
(208) 263-2108

Counsel for Defendants-Appellees
Carl Strass, Jacques B. Gelin, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2682

Before Wallace and Thompson, JJ.